[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Proposed Rules]
[Pages 55638-55641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22900]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0059; MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Snowy Plover and Reclassify the Wintering 
Population of Piping Plover

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the snowy plover (Charadrius 
alexandrinus) as endangered or threatened and to reclassify the 
wintering population of piping plover (Charadrius melodus) as 
endangered under the Endangered Species Act of 1973, as amended (Act). 
We find that the petition does not present substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted. This finding is based on our determination that the petition 
did not identify listable entities. Therefore, we are not initiating a 
status review for either species in response to this petition. However, 
we ask the public to submit to us any new information that becomes 
available concerning the status of, or threats to, the snowy plover or 
the piping plover or their respective habitats at any time.

DATES: The finding announced in this document was made on September 8, 
2011.

ADDRESSES: This finding is also available on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0059. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Panama City Field Office, 1601 Balboa 
Avenue, Panama City, FL 32405. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 
address.

FOR FURTHER INFORMATION CONTACT: Don Imm, Project Leader, Panama City 
Field Office (see ADDRESSES), by telephone at 850-769-0552 ext. 238, or 
by facsimile to 850-763-2177. If you use a telecommunications device 
for the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.), requires 
that we make a finding on whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. We 
are to base this finding on information provided in the petition, 
supporting information submitted with the petition, and information 
otherwise available in our files at the time that the petition was 
submitted to us. To the maximum extent practicable, we are to make this 
finding within 90 days of our receipt of the petition, and to publish 
our notice of the finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly conduct a species status review, which we subsequently 
summarize in a 12-month finding.

Petition History

    On September 5, 2000, we received a petition dated September 4, 
2000, from Robert R. Reid, Jr., on behalf of the Alabama Audubon 
Council, Alabama Environmental Council, and Alabama Ornithological 
Society (petitioners), requesting that the snowy plover be listed as 
threatened or endangered, and that the wintering population of piping 
plover be reclassified from threatened to endangered under the Act, and 
that critical habitat be designated under the

[[Page 55639]]

Act for both species. The petition was submitted concurrently with 
comments in response to the request for public comments contained in 
our proposal to designate critical habitat for wintering piping plover 
(July 6, 2000; 65 FR 41782) and our extension of the comment period for 
that proposal (65 FR 64414; October 27, 2000). We responded to the 
petitioner's comments related to the critical habitat rulemaking in the 
final rule for the designation of critical habitat for wintering piping 
plover (66 FR 36038; July 10, 2001).
    The petition mentions common threats to both species, provides 
brief examples of potential population declines, and discusses the 
petitioners' views on how consultations would benefit from critical 
habitat designations. The petition also discusses the petitioners' 
views on the economic advantages of critical habitat and mentions that 
``inhabited'' and ``uninhabited'' lands should be included in the 
critical habitat designations. Few references were provided to support 
the statements in the petition.
    The petition clearly identified itself as such and included the 
requisite identification information for the petitioners, as required 
by 50 CFR 424.14(a); however, no scientific name for either species was 
included in the petition. In an October 11, 2000, letter to the 
petitioners, we acknowledged receipt of the petition. We determined 
that issuing an emergency regulation temporarily listing either species 
under section 4(b)(7) of the Act was not warranted. We notified the 
petitioners that, due to court orders and judicially approved 
settlement agreements for other listing and critical habitat 
determinations under the Act that required nearly all of our listing 
and critical habitat funding for fiscal year 2001, we would not be able 
to further address the petition at that time, but we anticipated 
addressing the action when workload and funding allowed. Funding 
limitations have prevented the Service from responding to the petition 
until now. This finding addresses the petition. In separate sections 
below, we address the petitioners' requests to list the snowy plover as 
threatened or endangered and to reclassify the wintering population of 
piping plover as endangered.

Snowy Plover (Charadrius alexandrinus)

Species Information

    Snowy plovers are small shorebirds, about 6.7 inches (17 
centimeters (cm)) long. The plumage is pale gray or brown above, and 
pure white below. Their bills and legs are dark (Gore 1996, p. 73). 
Snowy plovers require expansive, open dry sandy beaches for breeding, 
and both dry and tidal sand flats for foraging (Woolfenden 1978, p. 9). 
They primarily feed on small crustaceans, mollusks, worms, and insects 
that they glean from beaches and sand flats. They nest on open, dry 
white sand where a typical clutch of three eggs is laid in a slight 
depression, sometimes lined with bits of shell (Woolfenden 1978, p. 9). 
In Florida, nests have been documented as early as February, with pair 
bonding reported as early as January (Gore and Chase 1989, p. 8).
    Two subspecies of snowy plover that nest in North America were 
recognized by the American Ornithological Union (AOU) in 1957 (5th 
edition of its Check-list, pp. 168-169): The western snowy plover 
(Charadrius alexandrinus nivosus) and the Cuban or Southeastern snowy 
plover (C. a. tenuirostis). Since that time, however, the AOU has not 
conducted a review of this subspecies distinction. The AOU stopped 
listing subspecies as of the 6th edition (1983) of its Check-list, 
although it recommended the continued use of the 5th edition for 
taxonomy at the subspecific level. The AOU has not formally or 
officially reviewed the subspecific treatment of most North American 
birds. In the 7th edition (1998, p. xii) of the Check-list, the AOU 
explained that its decision to omit subspecies ``carries with it our 
realization that an uncertain number of currently recognized 
subspecies, especially those formally named early in this century, 
probably cannot be validated by rigorous modern techniques.''
    Page et al. (1995, p. 3) state that two subspecies of snowy plover 
have been recognized for North America (and partially in South and 
Central Americas): Charadrius alexandrinus tenuirostris is found on the 
Gulf Coast east of Louisiana through Florida, the Bahama Islands, the 
north coast of the Yucatan Peninsula, the Greater and Lesser Antilles, 
and islands off the north coast of Venezuela; and C. a. nivosus is 
found elsewhere in the United States and Mexico (including coastal 
California and Baja California; locally in the Great Basin of 
California, Oregon, Nevada, and Utah; very locally in southern 
Saskatchewan, central Montana, southern Wyoming, central and eastern 
Colorado, and southern Arizona; sparsely but widely distributed over 
southeast New Mexico and east through north central Texas, central 
Oklahoma, and central Kansas; the southern Texas coast into northeast 
Mexico; and the central Mexican plateau) (AOU 1957, pp. 168-169; Cramp 
1983, p. 153). Others (Oberholser 1974, p. 312; Johnsgard 1981, pp. 
191-192; Jacobs 1986, p. 3; Gore 1996, p. 74) have stated that C. a. 
tenuirostris includes birds in coastal Texas and northeastern Mexico, 
as well as birds of the interior Great Plains.
    Gorman (2000, pp. 36-38) performed genetic studies that concluded 
the Greater Antillean snowy plovers, represented only by samples from 
Puerto Rico, were clearly differentiated from mainland birds in 
Florida. Furthermore, Florida birds were much more closely related to 
other continental populations of Charadrius alexandrinus nivosus than 
to Puerto Rican C. a. tenuirostris. Among birds east of the Rocky 
Mountains, Texas coastal and Great Plains birds appeared to be more 
closely related to other eastern birds than birds west of the Rocky 
Mountains.
    Gorman (2000, pp. 36-38) admits that, in the absence of further 
sampling, it is not clear whether all snowy plover populations in the 
West Indies and Bahamas would be grouped with birds from Puerto Rico or 
with birds from east of the Rocky Mountains. Differentiation among the 
eastern continental U.S. populations is apparently insufficient to 
warrant separate populations. Thus, these results suggest that snowy 
plovers east of Louisiana, including Florida, along the Gulf Coast may 
be grouped with Great Plains and other Gulf Coast birds. The Service 
accepts the characterization of the snowy plover as two subspecies in 
North America, Charadrius alexandrinus nirvosus and C. a. tenuirostris.
    It is not clear which demarcation the petitioners relied upon for 
the petition request, because neither a species nor subspecies 
scientific name was provided for the snowy plover in the petition. At 
times, the petitioners reference inclusion of the Texas coastline as 
part of the ``Gulf Coast'' snowy plover range; yet most references to 
population data are from Florida and, possibly, Alabama. No reference 
is made to the Caribbean population. The genetic studies performed by 
Gorman were reported earlier in the same year as the petition, and may 
not have been available to the petitioners prior to submission of the 
petition. Gorman (2000, pp. 36-38) made a recommendation that small 
management units based on demographic considerations might be adopted. 
Regardless of the petitioners' intention, they failed to provide a 
scientific name and to clearly identify the petitioned entity of the 
snowy plover.

[[Page 55640]]

Previous Federal Actions

    The Pacific Coast vertebrate population segment of Charadrius 
alexandrinus nivosus, the Western snowy plover, was listed as 
threatened under the Act on March 5, 1993 (58 FR 12864). The Pacific 
coast population is defined as those individuals that nest within 50 
miles of the Pacific Ocean on the mainland coast, peninsulas, offshore 
islands, bays, estuaries, or rivers of the United States and Baja 
California, Mexico. No other populations of the snowy plover are 
currently federally listed as threatened or endangered species.

Evaluation of Listable Entity

    Upon receipt of a petition to list, delist, or reclassify a 
species, we are to consider whether such petition ``clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved'' (50 CFR 424.14(b)(2)(i)). 
Throughout the subject petition, the term ``snowy plover'' is used with 
references to the ``Gulf Coast'' without providing a scientific name or 
distinguishing the snowy plover as a species, subspecies, or 
population. At the time of receipt of the petition, the Pacific Coast 
population of the Western snowy plover was listed as a threatened 
species (March 5, 1993; 58 FR 12864). The snowy plover breeding and 
wintering ranges provided in the petition identified ranges of both the 
Charadrius alexandrinus nivosus and C. a. tenuirostris. Thus, the 
petition did not fully identify what constituted the entity and as 
petitioned, did not, therefore, meet the ``listable entity'' 
requirement for a substantial finding.

Piping Plover (Charadrius melodus)

Species Information

    The piping plover is a small (6.7 to 7.1 inches (17 to 18 cm)) 
pale-colored migratory shorebird that breeds in three separate areas of 
North America: The Northern Great Plains, the Great Lakes, and the 
Atlantic Coast. The piping plover winters in coastal areas of the 
United States from North Carolina to Texas, along the coast of eastern 
Mexico, on Caribbean islands from Barbados to Cuba, and the Bahamas 
(Plissner and Haig 1997, pp. 8-9). Information from observation of 
color-banded piping plovers indicates that the winter ranges of the 
breeding populations overlap to a significant degree (Plissner and Haig 
1997, pp. 9-11; Wemmer 2000, p. 47). The source breeding population of 
a given wintering individual bird cannot be determined in the field 
unless the individual bird has been banded or otherwise marked.
    Piping plovers spend about two-thirds of the year on migratory and 
wintering grounds. Piping plovers begin arriving on the wintering 
grounds in July, with some late-nesting birds arriving in September. A 
few individuals can be found on the wintering grounds throughout the 
year, but sightings are rare in late May, June, and early July. 
Migration is poorly understood, but preliminary data suggest that 
plovers use inland and coastal stopover sites when migrating from 
interior breeding areas to wintering grounds (McConnaughey et al. 1990, 
p. 19). Observations of color-marked birds in Alabama indicated 
wintering plovers were least mobile from late November through late 
January (Johnson and Baldassarre 1988, p. 221). Concentrations of 
spring and fall migrants also have been observed along the Atlantic 
Coast (Service 1996, pp. 129-138). In late February, piping plovers 
begin leaving the wintering grounds to migrate back to breeding sites.
    Habitat on the wintering grounds consists of exposed sandflats, 
beaches, washovers and algal flats. Mudflats and sandflats provide 
foraging areas where piping plovers feed primarily on marine and 
freshwater invertebrates. Foraging accounted for about 75 percent of 
observed piping plover behavior in an Alabama study (Johnson and 
Baldassarre 1988, p. 217). The number of plovers foraging in an area 
may be dependent on density of food sources (Zonick 2000, p. 90).
    Two subspecies of piping plover, Charadrius melodus melodus 
(Atlantic Coast of North America) and C. m. circumcinctus (Northern 
Great Plains of North America), were recognized by the American 
Ornithological Union (AOU) in 1957 (5th edition of its Check-list 1957, 
pp. 167-168) and in 1983 (6th edition of its Check-list 1983, pp. 170-
171). However, the AOU has not conducted a review of this subspecies 
distinction since that time. The Service accepts the characterization 
of the piping plover as two subspecies in North America, C. m. melodus 
and C. m. circumcinctus.

Previous Federal Actions

    On December 11, 1985 (50 FR 50726; effective January 10, 1986), the 
piping plover (Charadrius melodus) was listed as endangered in the 
Great Lakes watershed of both the United States and Canada, and as 
threatened in the remainder of its range in the United States (Northern 
Great Plains, Atlantic and Gulf Coasts, Puerto Rico, Virgin Islands), 
Canada, Mexico, Bahamas, and the West Indies. The threatened status 
included all piping plover when on their wintering grounds.
    Protection of the entire species Charadrius melodus under the Act 
reflects its status range wide. However, the Service has consistently 
recognized three separate breeding populations of piping plovers, on 
the Atlantic Coast, Great Lakes, and Northern Great Plains. A recovery 
plan established delisting criteria for the Atlantic Coast breeding 
population (Service 1996, pp. 57-58). A joint recovery plan specified 
separate delisting criteria for the Great Lakes and Northern Great 
Plains breeding populations (Service 1988, pp. 54-55). After the 
September 4, 2000, petition was submitted to the Service, critical 
habitat was designated for the Great Lakes (66 FR 22938; May 7, 2001) 
and Northern Great Plains breeding populations (67 FR 57637; September 
11, 2002), and for piping plovers from the three breeding populations 
while on the wintering grounds (66 FR 36038; July 10, 2001).

Evaluation of Listable Entity

    The petition asserts the ``Need to Designate the Wintering Gulf 
Population of Piping Plover as Endangered'' (petition, p. 6). The 
petition focused solely on conditions along the Gulf coast and the 
status of the piping plover along the Gulf coast. The petition did not 
differentiate between species, subspecies, and distinct population 
segments, nor did the petition include a scientific name in its 
recommendation to change the status of the piping plover to endangered 
within the Gulf of Mexico. However, the petitioners were responding to 
a proposed rule to designate critical habitat for the piping plover 
(Charadrius melodus) while on its wintering grounds (65 FR 41782; July 
6, 2000) in the same document as the petition. The Service accepts the 
petition as a request to reclassify wintering piping plover of the 
listed entity (C. melodus) from a threatened to an endangered species.
    Upon receipt of a petition to list, delist, or reclassify a 
species, we are to consider whether such petition ``clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved'' (50 CFR 424.14(b)(2)(i)). Under 
the Act, a species is defined as including any subspecies of fish or 
wildlife of plants, and any distinct population segment of any species 
of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 
1532).

[[Page 55641]]

    Piping plovers on their wintering or migration grounds, such as the 
Gulf coast, do not constitute a valid entity. The listing (50 FR 50726; 
December 11, 1985) of the species classified all piping plovers on the 
Great Lakes watershed breeding grounds as endangered and all other 
piping plover as threatened including on their breeding grounds in the 
Northern Great Plains and Atlantic Coast and on their migration and 
wintering grounds. This, along with the proposed designation of 
critical habitat for wintering piping plover, may have given the 
impression that the piping plover constitutes a listable entity while 
on its wintering grounds. However, this is not the case. Birds from all 
three of the recognized breeding grounds use and share the same Gulf 
coast wintering habitats. Thus, the birds on the wintering grounds are 
all of the listed entity (C. melodus) but from three separate 
recognized breeding grounds. Thus, the petition's identification of a 
``Gulf wintering population of piping plover'' is, therefore, not a 
listable entity.

Finding

    In summary, on the basis of our determination under section 
4(b)(3)(A) of the Act, the petition does not present substantial 
information indicating that listing the snowy plover as threatened or 
endangered is warranted, because the entity as petitioned is not 
listable. No scientific name of the petitioned entity was provided, and 
there are two subspecies of the snowy plover accepted for North 
America.
    The petition also does not present substantial information 
indicating that reclassifying piping plover while wintering on the Gulf 
coast as endangered is warranted, because the entity as petitioned is 
not listable. The piping plover, as currently listed, represents all of 
the three recognized breeding entities wherever they reside or winter 
in their life cycle. The petition does not specify a listable entity 
for the requested reclassification.
    Although we will not review the status of the snowy plover or the 
piping plover at this time, we encourage interested parties to continue 
to gather data that will assist with the conservation of these species. 
If you wish to provide information regarding the snowy plover or piping 
plover, you may submit your information or materials to the Project 
Leader, U.S. Fish and Wildlife Service Panama City Field Office (see 
ADDRESSES), at any time.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the U.S. Fish and 
Wildlife Service, Panama City Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this notice are the staff members of the 
U.S. Fish and Wildlife Service Panama City Field Office (see 
ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 22, 2011.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-22900 Filed 9-7-11; 8:45 am]
BILLING CODE 4310-55-P